Australian Wheat Board Limited v Powell - [2004] WADC 3

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: AUSTRALIAN WHEAT BOARD LIMITED -v- POWELL [2004] WADC 3

CORAM: REGISTRAR KINGSLEY

HEARD: 13 NOVEMBER 2003

DELIVERED : 22 JANUARY 2004

FILE NO/S: CIV 1184 of 2003

BETWEEN: AUSTRALIAN WHEAT BOARD LIMITED
Plaintiff
AND
WILLIAM KENNETH POWELL
Defendant

Catchwords:

Practice - Application to set aside judgment - Turns on own facts

Legislation:

Nil

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff: Ms L D Chighine
Defendant: Ms K J Everett

Solicitors:

Plaintiff: Jackson McDonald
Defendant: WL & KJ Everett

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Collins Book Depot Pty Ltd v Bretherton [1938] VLR 40
Palmer v Prince [1980] WAR 16
Parker v Tansfield Pty Ltd [2000] WASCA 382
Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753

REGISTRAR KINGSLEY: This is the defendant's application seeking to set aside judgment in default of defence. The writ was filed in May 2003 and an appearance entered in June 2003. Without any further reference to the defendant, the plaintiff entered judgment on 14 July 2003.
In explanation for the entry of judgment, the defendant's solicitor candidly deposes that she assumed, wrongly, that the writ had been endorsed. She was waiting to receive a statement of claim. It was not until 18 August 2003 that the defendant's solicitor was notified by letter that judgment had been entered. Ms Everett then immediately brought an application to set aside judgment.
Two affidavits in support of the application have been filed - that of the defendant's solicitor sworn 27 August 2003 and that of the defendant sworn 7 October 2003. After argument, par 9 to par 19 inclusive of the defendant's solicitor's affidavit were struck out. Paragraphs 10 to 19 inclusive of the defendant's solicitor's affidavit are incorporated by specific reference into the affidavit of Powell.
The issue relates to two written contracts to supply grain by the defendant to the plaintiff. The first agreement (Contract R5116), the plaintiff pleads, was made in April 2000, and provided the defendant was to supply 1,035 tonnes of wheat grain to the plaintiff. The plaintiff pleads that a term of the agreement was that if the defendant failed to deliver the wheat grain, the defendant would incur a washout payment. That payment would be the difference between the contract price and the market value, plus costs, at the time of the washout. A washout, as I understand it, is where the plaintiff is obliged to go out into the market to purchase wheat grain to fulfil its contractual obligations. This occurs when growers do not deliver wheat grain to the plaintiff. By invoice 611658 the plaintiff requested payment of $55,262 being:
1,035 tonnes @ washout price $48.75 per tonne     $50,238.90
GST  $ 5,023.89
TOTAL  $55,262.79
The second agreement arises in October 2000 when the defendant agreed to supply 1,000 tonnes of wheat grain - contract H2745. Again the second agreement contains a washout payment. The defendant did not deliver the plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WADC 3
Decision Date: 22 JANUARY 2004

CaseChat Overview and Summary

In the case of Australian Wheat Board Limited v Powell, the matter before the court involved an application to set aside a judgment previously made by the court. The application was brought forth by Powell, who sought to have the judgment vacated on the basis of unique circumstances surrounding the case. The Australian Wheat Board Limited was the defendant in this application, challenging the grounds on which Powell sought to have the judgment set aside.

The central legal issue before the court was whether the application to set aside the judgment could be justified based on the particular facts of the case. This involved an examination of whether the application was made within a reasonable time, whether there was a valid reason for the delay, and whether the judgment, if set aside, would result in a just outcome. The court had to balance the principle of finality in judgments with the need to ensure that justice is served in individual cases.

The court, in its reasoning, examined the specific circumstances presented by Powell and found that there were indeed unique factors that warranted reconsideration of the judgment. The application was made within a reasonable time, and Powell provided a valid explanation for the delay. The court concluded that setting aside the judgment was necessary to achieve a just outcome in light of the particular facts of this case. As a result, the application to set aside the judgment was granted.

The final orders of the court included the setting aside of the previous judgment and the allowance of Powell's application to proceed with a new hearing. This decision underscores the importance of considering the individual circumstances of each case when determining whether to set aside a judgment, ensuring that justice is served in a fair and equitable manner.

Orders